Australian Skills Quality Authority v Western Institute of Technology Pty Ltd

The Australian Skills Quality Authority (ASQA) has brought an application against the Western Institute of Technology Pty Ltd (Western Institute) seeking indemnity costs for the appeal to the Court. The parties had earlier agreed that the Administrative Appeals Tribunal (AAT) had erred in its decision, which was remitted to the AAT for reconsideration. The Western Institute applied for the Court to order that each party bear its own costs of the appeal and that ASQA pay the Western Institute’s costs of the appeal thereafter. The Western Institute also sought a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal.

The central legal issues that arose in this case were whether the judgment obtained was more favourable to ASQA than the terms of the offer of compromise, and whether there was a basis to depart from the presumption in favour of indemnity costs. The Court had to determine whether the Western Institute’s application for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) should be granted. The Court also had to decide whether the Western Institute was entitled to costs on an indemnity basis from 11.00 am on 4 April 2017, as ASQA had sought.

The Court found that the judgment obtained was more favourable to ASQA than the terms of the offer of compromise, and that there was a basis to depart from the presumption in favour of indemnity costs. The Court also found that the Western Institute was not entitled to costs on an indemnity basis from 11.00 am on 4 April 2017, as ASQA had sought. The Court further found that the Western Institute was not entitled to a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The Court found that the Western Institute’s application for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) should be refused.

The Court ordered that the Western Institute pay ASQA’s costs of and incidental to the appeal, such costs to be paid on a party and party basis before 11.00 am on 4 April 2017 and on an indemnity basis from 11.00 am on 4 April 2017. The Court also refused the Western Institute’s application for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).